vol 22 | no 1 | winter 2011

“property rights and the

demands of transformation ”
 property rights and transformation

Property
Rights&
the
Bernadette Atuahene
Bernadette Atuahene is a member
of the faculty of Chicago-Kent Col-
lege of Law, and has been a Faculty
Fellow at the American Bar Foun-
dation since 2007. She holds a
J.D. from Yale Law School, and a
Demands
of Transformation
Master’s in Public Administration
from the John F. Kennedy School
of Government at Harvard Univer-
sity. After receiving her law degree,
Atuahene was awarded a Fulbright
Scholarship to work and study in
South Africa, where she served as a
judicial clerk at the Constitutional
Court of South Africa, working for In 1994 South Africa held its first free democratic
Justices Madala and Ngcobo.
At Chicago-Kent, Professor Atu- elections, with victory going to the African National
ahene teaches Law, Policy and In-
ternational Development; Property;
and International Business Transac- Congress, the party that had struggled for decades for
tions. Professor Atuahene has pub-
lished widely on the topic of the
confiscation and restitution of prop- African liberation from the Apartheid system.
erty, with a particular focus on South
Africa. In 2008 she was awarded
the Council on International Af-

fairs Fellowship, and worked with
the South African Director General
of Land Affairs and his staff. She is
currently writing a book about the
Land Restitution Program, which is
based upon 150 interviews she con-
ducted with the program’s beneficia-
ries. Atuahene is also producing and
directing a documentary film on the
struggles of one South African fam-
ily to reclaim their land. Professor
Atuahene has been named Fellow
for the 2011-12 academic year in
the Program in Law and Public Af-
fairs at Princeton University.
1 researching law
U
nder the leadership of
Nelson Mandela, the new
government faced many
pressing social and political issues
stemming from the Apartheid past,
among them the inequitable distri-
bution of land among the nation’s
population. As a direct result of racist
government policies and practices of
the past—most notably the forcible
and systematic displacement and dis-
possession of black landowners—the
vast majority of the nation’s land mass
was owned by the white minority.
After its election, the new government
spent two years negotiating the terms
of a new constitution that specifically
called for land reform to address this
vol 22 | no 1 | winter 2011

legacy. Yet, reform has proceeded at
a glacial pace, leading to such levels
of disillusionment and frustration
among the black majority today that,
some commentators suggest, the sta-
bility of the state may be threatened.
In a new article, “Property Rights
and the Demands of Transforma-
tion,” ABF Faculty Fellow Bernadette
Atuahene addresses this situation and
the questions it provokes. In particular,
she analyzes the basis for the current
system of property law in South Africa
— the “classical conception”— and
asks “for states where past property
dispossession has the serious poten-
tial to cause backlash and destabilize
the current state, is the classical con-
ception appropriate or do these states
require an alternative conception
of property?” Atuahene argues that
the defining principles of the classi-
cal conception of property, especially
the almost total control of property it
grants to owners, are the very features
that impede fair, orderly, and timely
land reform in South Africa. Alternate-
ly, in this paper, Atuahene develops
“a transformative conception of real
property that facilitates property
redistribution, which bolsters fairness
and stability.” This new conception
may be justified in situations where
the long-term frustrations of the un-
justly dispossessed majority threaten
state stability, Atuahene argues. In
such situations a time-limited appli-
cation of property law informed by
the transformative conception may
vol 22 | no 1 | winter 2011
create optimal conditions for just and
timely land reform.
the legacy of past
property theft and the
promise of land reform
The history of South Africa
is marked by systematic thefts of
native lands by white colonial powers.
Under the
Natives Lands Act,
black land
ownership was
restricted to
certain areas of the
country, which
totaled only
seven percent of
the landmass.
The British and Dutch violently
dispossessed natives of their land
both as a means of distributing it to
white settlers and as a way to destroy
African self-sufficiency and “to cre-
ate a surplus of cheap labor to work
on white-owned farms and mines,”
Atuahene states. The system of land
confiscation continued after the
Second Boer War, when in 1913 the
property rights and transformation
newly formed Union of South Africa
passed the Native Lands Act. Under
the Natives Lands Act, black land
ownership was restricted to certain
areas of the country, which totaled
only seven percent of the landmass;
consequently, more blacks were forc-
ibly removed from their land. Apart-
heid became official government pol-
icy in 1948, and displacements and
dispossessions continued through
the 1980s. As Atuahene explains, as
a consequence of this history, “today
upwards of eighty percent of com-
mercial farmland in the region is
owned by whites, who constitute less
than ten percent of the population.”
The Apartheid system began to
break down in the late 1980s and
early 90s as the government under-
took negotiations with the oppo-
sition African National Congress
(ANC) under the leadership of
Nelson Mandela. In 1994, “in
exchange for political independence,
the African liberation parties agreed
to allow present owners to keep their
property and maintain their jobs
despite past injustices,” Atuahene
explains. This “liberation bargain”
also included the promise of future
land reform, with the proviso that any
future reform would respect current
property rights. As Atuahene notes,
“in this bargain, the white minority
secured valid legal title to substan-
tial assets while dispossessed African
communities received a promise of
land reform.”
researching law 2
 property rights and transformation

The promise of land reform is few dispossessed blacks have been possibility of severe backlash is high.
enshrined in Chapter 2 of the Con- compensated in any way. The world has already witnessed this
stitution of the Republic of South Af- possibility realized in Zimbabwe.”
rica (1996) in the following Sections: property-related In post-colonial Zimbabwe, land
backlash : the case reform did not follow the rule of law.
t


The state must take of zimbabwe The colonial system in Zimbabwe
reasonable legislative and resulted in whites owning more
other measures, within its The slow pace of land reform may than eighty percent of the country’s
available resources, to foster result in very serious consequences fertile agricultural land at the time of
conditions which enable for South Africa, Atuahene warns. independence. After independence
citizens to gain access to land and the election of president
on an equitable basis. Robert Mugabe, several unsuccessful
t


A person or community attempts were made to redistribute
whose tenure of land is Today upwards property, resulting in great frustration
legally insecure as a result of amongst the landless black popula-
past racially discriminatory
of eighty percent tion. Finally, as Atuahene reports, “in
laws or practices is entitled, of commercial a desperate attempt to rapidly deliver
to the extent provided by an farmland in the on the promise of land reform and
Act of Parliament, either to to retain power, Mugabe’s govern-
tenure which is legally secure region is owned ment supported a hasty and violent
or to comparable redress. by whites, who land reform program in 2000.” The
t


A person or community
dispossessed of property after
constitute less than chaotic, corrupt, and sometimes
bloody process came at an enormous
19 June 1913 as a result of ten percent of cost to Zimbabwe’s once prosperous
past racially discriminatory the population. economy: by 2005 agricultural out-
laws or practices is entitled, put had declined by thirty percent;
to the extent provided by an the average annual GDP growth from
Act of Parliament, either to 2000 to 2006 was negative 5.6% and
restitution of that property With a history of past property theft inflation became rampant.
or to equitable redress. and no compensation, she explains,
t

 Parliament must enact the majority of the population “is rising frustration and
the legislation referred to in likely to perceive the existing prop- threats to state stability-
subsection (6). erty distribution as illegitimate and a moment of interest
this perception can serve as the basis convergence
But land reform has not hap- for property disobedience and back-
pened in a timely fashion. More lash,” and consequent instability of Atuahene cites the work of
than fifteen years after the end of the state. In South Africa, Atuahene political scientist James Gibson to
Apartheid less than seven percent comments, “if past property theft is bolster her argument that landless
of land has been redistributed and not addressed in a timely fashion, the black South Africans are becoming

3 researching law vol 22 | no 1 | winter 2011

 property rights and transformation

The Republic of South Africa, showing the distribution of land until 1994. Colored areas represent bantustans (homelands) to which the black
population was confined under the Natives Lands Act. Today the property distribution has changed little, despite more than 15 years of land reform.
vol 22 | no 1 | winter 2011 researching law 4
 property rights and transformation
increasingly outraged at the slow pace
of land reform. Gibson conducted a
public opinion survey, published in
2009 that found that, of the 3,700
South Africans surveyed, eighty-five
percent of black respondents believe
that “most land in South Africa was
taken unfairly by white settlers, and
they therefore have no right to the
land today. By contrast, only eight
percent of whites held the same view.”
Gibson also found that two out of
three blacks agreed “land must be
returned to blacks in South Africa,
no matter what the consequences
are for the current owners and for
political stability in the country.”
Ninety-one percent of whites dis-
agreed with this statement. Gibson
concludes: “land issues have all of the
characteristics required to become
volatile and destabilizing, should
effective political leadership emerge
to mobilize the discontented.”
Atuahene argues that the social
and economic costs of maintain-
ing the status quo are so high, and
the threat of destabilization so great,
that the current situation creates a
“unique moment of interest conver-
gence, where opponents and support-
ers of redistribution are most likely to
work together to pursue a common
goal—stability.” Though reparations
should be enacted on moral grounds,
Atuahene comments, in practice this
often does not occur. However, as a
practical measure, opposing parties
may come together to enact a time-
5 researching law
ly and transparent reform when the efficient, and effective land reform.
stability of the state is at risk. With land reform imperative not only
for fulfilling the demands of the Con-
stitution, but also for state stability,
More than fifteen Atuahene proposes the time-limited
adoption of a new “transformative”
years after the end conception of real property. She de-
of Apartheid less velops the transformative conception
after first analyzing the components
than seven percent of the classical conception of prop-
of land has been erty and their impact on land reform.
redistributed and Under the classical conception
owner control of property is very
few dispossessed highly valued. Atuahene further
blacks have been explains the classical conception by
compensated in listing four of its principles. Under
the classical conception, she states,
any way. an owner must:
1) acquire valid legal title
the classical conception through individual efforts to
of property and its become the sole owner with
impact on land reform consolidated rights;
2) possess near absolute control
In the years since liberation, over the use and transfer of
“although only one side of the libera- her property so long as it
tion bargain has been upheld” the does not cause significant
government of South Africa has “hon- harm to anyone else;
ored the bargain and thereby ensured 3) rely upon the state to defend
its legitimacy.” How then, to resolve her rights against third
a situation where current landown- parties who attempt to
ers have valid title, the government is infringe upon this control
committed to upholding landowners’ while deemphasizing her
rights, but the need for land reform duties to third parties; and,
is urgent? Atuahene argues that the 4) expect that the state or other
prevailing conception of property in third parties will bear the
South Africa that undergirds current burden of justifying any
law—the “classical conception”—cre- actions that attenuate her
ates legal obstacles that impede just, control of the property.
vol 22 | no 1 | winter 2011

Atuahene first analyzes the
underpinnings of the state’s land resti-
tution program. As she states, “South
Africa’s implementation of its con-
stitution’s land restitution provision
is a prime example of the classical
conception at work.”
How then, to
resolve a situation
where current
landowners have
valid title, the
government is
committed to
upholding
landowners’ rights,
but the need for
land reform
is urgent?
Land restitution, one of three
prongs in South Africa’s land reform
policy (the others are land tenure
reform and land redistribution),
“compensates individuals and com-
munities whose land was expropri-
ated by past governments.” Restitu-
tion specifically addresses Chapter
2, Section 25.7 of the South African
Constitution, mentioned above. As
Atuahene points out, however, there
vol 22 | no 1 | winter 2011
are problems with the government’s
enactment of restitution programs.
For example, when compensation
has been paid, the compensation has
been symbolic and “did not reflect
the market value of the property at
the time of confiscation or the pres-
ent.” The government has cited bud-
get constraints as the reason for small
payments to claimants; however
when the government has purchased
land from whites through eminent
domain for the purpose of redis-
tribution or restitution, it has paid
owners fair market value, despite
budget constraints, Atuahene notes.
Atuahene argues that white own-
ers in these eminent domain cases are
given fair market value for their prop-
erty while dispossessed blacks receive
smaller symbolic payments because:
the government is giving
existing owners’ rights more
value than the rights of dispos-
sessed individuals and commu-
nities. This is because the state
is working within a conceptual
framework that assumes current
owners acquired valid legal title
through their individual efforts
to become the exclusive,
deserving owners…The frame-
work dismisses the possibility
that current owners acquired
their property unjustly; and it
also ignores the rights of owners
unjustly dispossessed. Most
importantly, the framework
property rights and transformation
overlooks the duties present
owners may have to dispossessed
populations with valid owner-
ship claims. Thus, despite the
transformative potential of
Section 25.7, the classical
conception is the framework
that has informed the
government’s decisions and
determined the outcomes.
In most cases, however, the South
African government has avoided
using eminent domain, engaging
instead in negotiated land reform,
which is based on the willing-seller/
willing buyer principle. But, again,
negotiated land reform also is shaped
by the classical conception of proper-
ty, where “owners have near absolute
power to decide to whom, at what
price, and on what terms they will
sell their land.” This, despite the fact,
Atuahene argues, “that expeditious
land reform is necessary to address
past injustice and avert backlash.”
Atuahene explains that while the
black majority who favors increased
use of eminent domain has significant
electoral power, “those lobbying for
negotiated land reform have immense
economic power.” South Africa is
dependent upon foreign assistance
and investment to finance its land
reform program. World Bank econ-
omists advise against eminent do-
main and for negotiated land reform,
and their example sets the tone “for
what other foreign donors and inves-
researching law 6
 property rights and transformation

tors view as acceptable land reform theorists such as Robert Nozick, is the transformative
policies,” according to Atuahne. based on the labor theory of owner- conception of property :
Because of these circumstances, “the ship. That is, these theorists assume the reciprocal
ANC has made a strategic choice to that “property rights are acquired relationship between
pacify those with economic power through individual effort and free rights and duties
and continue with negotiated land and fair market exchanges.” Thus,
reform against the wishes of the Atuahene argues, the classical The transformative conception
majority,” Atuahene states. conception was never intended to of property is based on four defining
Atuahene summarizes the weak- principles:
nesses of the classical conception
of property in the context of South 1) All property is not alike,
Africa in four points: “A pervasive and and thus one uniform
potentially fatal standard of protection
1) Relying upon willing sellers
often undermines the state’s problem with is inappropriate.
2) The transformative
planning capacity because negotiated land conception requires the
the government cannot con-
demn and acquire
reform is that it state to vindicate the rights
of both present title holders
contiguous parcels of land is too slow.” and past owners who were
in a specific area. unjustly dispossessed.
2) Negotiated land reform gives 3) While the classical concep-
landowners the upper hand “apply in contexts where past property tion focuses solely on unidi-
in land negotiations. theft was never rectified.” Further, as rectional demands titlehold-
3) The quality of the land Atuahene explains, Locke argued ers can make on society, the
available through negotiated “private ownership is legitimate so transformative conception
land reform is more likely long as there is some property left over requires the state to focus on
to be substandard. for others.” In South Africa in 1994 the duties of titleholders and
4) A pervasive and potentially “eighty-seven percent of the land was not just their rights.
fatal problem with negoti- owned by whites who constituted less 4) The transformative concep-
ated land reform is that it than ten percent of the population,” tion does not automatically
is too slow. Atuahene reminds us. place the burden of proof on
Given the urgency of fair, orderly third parties. It requires the
Further, Atuahene argues that in land reform in South Africa as well owner to bear the burden of
the context of South Africa the clas- as the weaknesses of the classical con- proving that certain modifi-
sical conception of property is not ception of property outlined above, cations intended to facilitate
justified, because the legitimacy of Atuahene proposes “it is now time to the reallocation and relegiti-
property rights is in question. The re-imagine the possibilities. It is time mization of property rights
classical conception, developed by to explore a transformative concep- are not justified.
John Locke, and by later natural law tion of real property.”

7 researching law vol 22 | no 1 | winter 2011

 property rights and transformation

While the transformative con-
ception represents a radical depar-
ture from the classical conception,
Atuahene suggests that it is justified
in “the extreme case, which is when
inequality emanating from past prop-
erty theft has the potential to cause
backlash and destabilize the state.”
rentals to redistribute land.
As Atuahene explains, each
of these policies is “incompat-
ible with the classical conception,
but exemplary of the transformative
conception.”
According to Atuahene, an auto-
matic Right of First Refusal (ROFR)
with the transformative conception
of property. Eminent domain coun-
teracts “the undue power of intransi-
gent owners to obstruct or make the
state’s acquisition of land for a valu-
able public purpose prohibitively ex-
pensive.” Under the classical concep-
tion eminent domain is considered a

With a history of past property theft and no compensation,

the majority of the population “is likely to perceive the
existing property distribution as illegitimate and
this perception can serve as the basis for property
disobedience and backlash.”

In such cases, Atuahene calls for
a time-limited application of the
transformative conception of prop-
erty until such time as “there is a
generalized belief that present owners
have acquired their property fairly,”
at which time “the society may move
to the point where the vast majority
of citizens believe that it is in their
self-interest to adopt a conception
of property that prioritizes protect-
ing owners rather than facilitating
land reform.”
Atuahene suggests three ways a
state can actualize the transforma-
tive conception of property through
redistributive policies such as: 1) auto-
matic right of first refusal; 2) eminent
domain; and 3) mandatory land
for the state on predetermined lands
is one method through which the
state can begin redistributing prop-
erty more equitably. In such a system,
the state would be required to exer-
cise the ROFR within a reasonable
period of time, after which its rights
would extinguish automatically. The
owner, on the other hand, would bear
the burden of proof that the ROFR
was not justified. Atuahene addresses
the concern that such a ROFR would
reduce competition and add unnec-
essary inefficiencies to the market by
suggesting that the state can subsidize
potential buyers costs and be limited
to the set period of time to exercise
the ROFR, as mentioned above.
Eminent domain is also consistent
serious infringement on owner rights,
and is thus used sparingly. Under
the transformative conception land
reform itself is considered a valid pub-
lic purpose. Indeed, the South Afri-
can constitution specifies, “the public
interest includes the nation’s commit-
ment to land reform.” (2.25.4a)
Atuahene argues that in eminent
domain proceedings in South Africa
where systematic past property theft
has shaped the current property dis-
tribution, “it is not appropriate to
assume that compensation should be
automatically equivalent to the fair
market value (FMV), because prop-
erty was sometimes not acquired on
fair market terms.” The transforma-
tive conception of property does not

vol 22 | no 1 | winter 2011 researching law 8

 property rights and transformation

automatically offer owners FMV in
cases of eminent domain because
it “takes into account the reality of
how an owner actually acquired the
land.” Under the transformative con-
ception the owner has the burden of
proving that only the FMV should
apply. Atuahene admits that this
approach to eminent domain may
ate productive and unproductive land
and subject unproductive land to long
to medium term leases with the state.”
While land rentals do not transfer the
wealth attached to land, they do pro-
duce economic benefits for tenants,
who can labor, build wealth and per-
haps eventually become owners. “In
order to provide current owners with
jural correlatives—one cannot exist
without the other.” “This reinforc-
ing relationship between rights and
duties,” she adds, “is deeply embed-
ded in the transformative conception.”
Thus, “as a result of the political nego-
tiations that led to African liberation
in South Africa, titleholders have a
right to their land, but they also have

The transformative conception of property does not

automatically offer owners fair market value in cases of
eminent domain because it “takes into account the reality
of how an owner actually acquired the land.”

discourage long-term investment in
and improvements to property. To
counter this effect she proposes that
“all improvements created or fully
paid for by [owners] are entitled to
FMV upon expropriation.” But com-
pensation for the underlying land
should be “subject to the contextual
understanding of just compensation.”
Mandatory land rentals comprise
the final method of land distribution
under the transformative conception
that Atuahene discusses. As Atuahene
notes, “one consequence of extreme
inequality is that there are a few
owners who often have more high
quality land than they can use pro-
ductively.” When states lack the funds
to purchase land, they can “differenti-
adequate notice, the state should
create a comprehensive list of uses
that it is likely to classify as unpro-
ductive,” Atuahene states. “Once the
state classifies land as unproductive,
the burden is on the owner to prove
that the classification is unjustified.”
The emphasis on the duties of
property holders and not just their
rights is a distinguishing characteristic
of the transformative conception.
While under the classical conception
of property an owner can let his or
her fertile land lie fallow, under the
transformative conception, “owners
have a duty to facilitate redistribu-
tion,” Atuahene states. Citing Wes-
ley N. Hohfeld’s famous argument,
Atuahene states, “rights and duties are
a duty to facilitate redistribution.” At
the same time, those dispossessed of
land under the prior regime have a
duty to respect the rights of current
titleholders, but they also have a right
“to the vindication of their land rights,”
Atuahene summarizes.
the novel attributes
of land and the
transformative
conception of property
Atuahene acknowledges that
the transformative conception is
open to criticism, and she addresses
some potential criticisms in her
article. For example, it can be argued
that the transformative conception is

9 researching law vol 22 | no 1 | winter 2011


unnecessary “because tax and transfer
programs more efficiently redistrib-
ute assets,” Atuahene states. To this
criticism Atuahene counters that in
certain states such as South Africa
“the novel attributes of land make its
actual transfer essential.” First, land
has cultural value, Atuahene asserts,
“because it plays a key role in indi-
vidual and group identity.” Though
groups may have been dispossessed of
land in the distant past, present day
members may still have a strong cul-
tural connection to the land. Second,
“since land is a highly visible sign of
wealth, perceptions about inequality
may not shift without the significant
transfer of real property.” Citizens’s
perceptions of inequality are impor-
tant as they are one “primary source
of backlash,” and potential state
instability, Atuahene argues. Third,
Atuahene states, “land is the basis
of sovereignty,” and “if an indig-
enous majority does not reclaim land
that was unjustly dispossessed by an
ethnically distinct market-dominant
minority, then political independence
can ring hollow.” Finally, in some
societies “land is the most important
means of production” so that access
to it is one means out of poverty. As
Atuahene concludes, “therefore, while
some states can address inequality
resulting from past theft through tax
and transfer programs, others require
a new conception of property that
facilitates prompt land transfer.”
vol 22 | no 1 | winter 2011
property rights and transformation
Atuahene counters several other
critiques of the transformative con-
ception of property with strong
arguments. She also emphasizes that
the transformative conception is not
appropriate in all contexts, and its
adoption should be time-limited. It
is most fitting and useful “during the
period in which society is changing
from one set of values based on exclu-
sion and oppression to another based
on inclusion and fairness,” Atuahene
states. But however apt, it is a “lim-
ited technical legal solution,” which
represents just one piece of a larger
puzzle. For effective and meaningful
land reform to occur states must find
the political will to develop a trans-
parent, efficient bureaucracy, decide
who will benefit from land reform
programs, make sure that the courts
protect the rights of current owners,
and create effective agrarian reform
policies, Atuahene notes. Yet, “every
puzzle is solved one piece at a time,”
Atuahene concludes, and in certain
cases the transformative conception
is a piece worth adopting.
Bernadette Atuahene’s research
on land reform in South Africa
appears in several recent publications,
including “Property Rights and the
Demands of Transformation,” 31
Michigan Journal of International Law
765 (2010).
if you are interested in supporting
research on land reform in
south africa or other important
abf initiatives, please contact
lucinda underwood at 312.988.6573
researching law 10
president copy editor
William C. Hubbard Anne Godden-Segard
researching law
director An ABF Update designer
Robert L. Nelson Quarterly Publication Bradley Sexton Designs
Volume 22, Number 1
writer | editor Winter 2011 contact
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